Property owners, take note: The Massachusetts Superior Court just issued a decision in an important case – New England Property Services Group (NEPSG) v. Bunker Hill Preferred Insurance Company [No. 2284CV2019] – that could directly impact your property insurance claim.
The issue at hand revolved around the contentious issue of “matching” – which involves the degree to which an insurance carrier must “match” materials when repairing property (typically a roof or siding) as part of an insurance claim. In these cases, the insurance carrier wants to repair (pay for) only the damaged portion of the roof or siding. This short-change position ignores the reality of how materials age, or stop being manufactured – making it impossible to match the new with the previous materials. Basically, the non-matching nature of the materials justifies a comprehensive repair instead of a patch job.
In these cases, the insured (or, more appropriately, the insured’s public adjuster) often has to demonstrate that the materials used in the repair cannot be matched. It leads to drawn-out fights that extend the claim, and spark reference or litigation – which is why this recent decision is so important.
In the NEPSG case, the carrier only wanted to repair a part of the damaged roof, not the whole thing. But the roofing materials involved are no longer manufactured, making the “matching” aspect impossible. The insured had to take the case all the way to Mass. Superior Court where the judge ruled in the insured’s favor. This means the carrier is responsible to pay for a full roof replacement as opposed to just repairing a single portion.
In addition to the stand-alone significance of this win for insureds, the NEPSG case also represents continued momentum on the “matching” issue in courts. In 2019, the Mass. Superior Court heard an earlier version of the matching issue. In the case David and Carol Edelman v. Certain Underwriters at Lloyd’s, London (No. 2017-02471-F), the plaintiffs owned several commercial properties that suffered damage from hail. The insurance company only wanted to pay for the damaged sections of the roof and siding. The court ruled in favor of the Edelmans, giving the plaintiffs a victory on the matching issue and requiring the insurance carrier to pay for full replacement. These legal developments can be incredibly important for building owners who must contend with carriers in contentious property insurance claims.
Some other scenarios where matching comes into play are the following:
- The siding is torn off two sides of a building during a windstorm. The siding is no longer being manufactured. As long as the siding all matched before the loss, the insured is owed a full replacement so everything matches once it’s repaired. The insurer will no doubt push back on full replacement, so the insured must document everything. If the siding or any item did not match before the loss, the chances of the insured being paid for all under matching are slim to none, unless there is a justifiable reason. If a building was patched with mismatched siding before, does the insured give up on the argument, or can a further argument be made that they will accept all siding with the deduction of the small amount of the mismatched siding?
- Same scenario as the above, but the siding is available to purchase again. What happens if the new siding grain is different, or the color is different as the new siding doesn’t account for fading from the sun?
- A roof has damage from hail to one slope and the shingles are no longer being made. The entire roof must be replaced. The insured would need to document to the insurer that the shingles are no longer in production, perhaps by speaking to a local building supply company or getting a letter from the shingle manufacturer.
- A roof has damage to one slope. The shingle is currently being manufactured and will “in theory” match. What happens If it doesn’t match, and what happens if there are already two layers of shingles on the existing roof?
- One wall of a living room is damaged. Does the insurer owe the insured the amount of money it would take to paint the one wall or for all four so they match?
- One room is damaged from water and the carpet is removed only in this one room. This carpet runs through the entire floor of the home with no “breaks.” All of the continuous carpet needs to be replaced. What if there is a threshold between rooms? What if a door can’t close between areas of carpet?
These are just a few examples where matching can come into play when adjusting a claim. Stay abreast of these critical court decisions and make sure your carrier is giving you the full coverage you deserve. SMW is always happy to help with questions you may have on these issues.
